Indiana

Last August a toxic algae bloom in Lake Erie temporarily shut down Toledo, Ohio’s water source leaving questions about the long term viability of that source of water for about 400,000 people. This was fueled not only by warm temperatures but nutrient rich runoff. Nutrient pollution has recently been connected to adverse impacts for ecological and economic systems across the Great Lakes Region. A two-day symposium in Chicago is examining the current state of nutrient management in the Great Lakes, what policies are working and how stakeholders can work towards solutions. Aquatic Ecologist Nancy Tuchman and Gail Hesse of the Ohio Lake Erie Commission sift through some of these issues.

CHICAGO — Note to corporate agriculture: The U.S. Environmental Protection Agency has inspectors in the sky looking down at you.

Susan Hedman, the EPA’s Midwest regional administrator, said Thursday night at a Great Lakes conference her agency has had inspectors in small planes the last three years looking for manure-management violations by large livestock operations known as concentrated animal feeding operations, or CAFOs.

Ms. Hedman declined to provide specifics, saying the occasional flyovers are an enforcement tool. But she said the federal EPA has found it useful in taking legal action against some CAFOs with large manure releases, and sees expansion potential. The surveillance is not spying: The agriculture industry is notified in advance when the agency will be flying in the Great Lakes region, she said.

“That’s a very good use of inspector time,” Ms. Hedman told The Blade following her presentation.

The event, a two-day Great Lakes symposium sponsored by Chicago’s Environmental Law & Policy Center, drew a large Ohio contingent and put last August’s algae-induced Toledo water crisis at center stage. It concluded Friday.

The stonewalling continues on my report yesterday that the Quinn administration commissioned—but never disclosed—a report that undermined its claims that the proposed Illiana Expressway was financially viable.

In a statement, a spokesman for the Illinois Department of Transportation now confirms that Fitch Ratings was retained by the state to review Illiana finances last year and concluded that the plan “could not receive an investment grade rating.” The spokesman also again said that the analysis was “provided verbally” to IDOT and its financial advisers.

But that’s about all he’s saying.

Who got the verbal report? No answer.

How long was it? Were there any supporting documents? No answer.

That, says state Rep. Jack Franks, D-Woodstock, is “outrageous.”

“I told IDOT I want it in writing,” Franks continued in an email. “No one would pay $112,000 for an oral report in the real world. Only in government apparently.”

Amen. But IDOT adds that it continues to review its financial options.

Why did ex-Gov. Pat Quinn’s administration, amid an all-out rush to stampede the controversial roadway through to final approval last year, commission a secret, $112,000 study of whether Illiana finances would be solid enough to quality for a big federal construction loan?

And why was that study, which apparently came back negative, never released—even now, with everybody in Springfield who knows passing the buck to someone else?

It’s a pretty sad story about the drive that would leave Illinois taxpayers liable for paying maybe $1 billion in subsidies.

Here’s what I’ve found out:

In late 2013, facing a bitter re-election campaign, Team Quinn went into overdrive to win approval of the Illiana, which would run between Interstate 55 in Illinois and Interstate 65 in Indiana. The road had its defenders, who argued it would provide a big boost to the booming warehouse industry in the south and southwest suburbs, but others considered it a boondoggle designed to get votes and political support.

In fall 2013, the staff of the Chicago Metropolitan Agency for Planning, this region’s official gatekeeper for federal transportation cash, concluded that the road, which is supposed to be a public-private partnership, never would pay for itself. That would leave Illinois taxpayers on the hook in a major way.

Illinois’ habit of playing with fire involving its finances has to end.

Gov. Bruce Rauner has put a hold on many state spending programs because of the lack of funds. But there’s one project that he ought to kill outright — the proposed Illiana Expressway in Will County.

Most people have never heard of the Illiana, and that’s too bad. The more people who know about it, the more people there would be who would oppose it.

The Illiana is a proposed 47-mile toll road that would, according to current plans, run east from Interstate 55 near Wilmington, cross I-57 near Peotone into Indiana and connect with I-65 near Lowell. It would cost an estimated $1.3 billion and take up to four years to complete.

Illiana proponents say it would ease traffic congestion 15 miles north, at the intersection of I-80 and I-57. Theoretically, motorists would use the Illiana if they had an alternative option.

There are multiple problems with the Illiana, the most serious of which is that Illinois has severe financial problems that will only be exacerbated if this project goes forward.

Illinois already has an infrastructure inventory that it can’t maintain. A series of high-ranking state officials are seeking a gas-tax increase to meet that demand. To divert tax dollars to the building of a new road — even a toll road — would leave fewer resources to address current demands.

The Illiana has come close to passing the General Assembly in the past. For reasons known only to him, former Gov. Pat Quinn supported its construction, perhaps to win votes and financial backing from the labor union members drooling over the prospects of all the construction jobs it would create. In addition to organized labor, Joliet business interests want the cash injection into the local economy.

Gov. Rauner has been lukewarm to the idea while not ruling it out. It appeared to some that he signaled opposition when he appointed Randy Blankenhorn as the new secretary of the Transportation Department.

Blankenhorn, whose nomination has not yet been confirmed, was the head of the Chicago Metropolitan Agency for Planning when the agency’s professional staff estimated building the Illiana could cost taxpayers “from $440 million to potentially over $1 billion.”

The proposed road-to-nowhere that was thought to be a chip in Pat Quinn’s bid to win re-election as governor has not died with the change in command in Illinois.

Gov. Bruce Rauner has put a hold on the Illiana Expressway, just as he’s put a hold on every other big project in Illinois. But he hasn’t killed Illiana, which is a surprise considering the austerity of his proposed budget and his commitment to doing away with wasteful spending.

And the Illiana is indeed wasteful. That’s not just our view. It’s what the experts from the staff of the Chicago Metropolitan Agency for Planning say.

The proposed 47-mile stretch of road 15 miles south of Interstate 80, which would connect Interstate 55 in Illinois to Interstate 65 in Indiana, could put Illinois taxpayers on the hook for $440 million to $1.1 billion over 35 years. That’s money that won’t be spent on existing roads and bridges, which are in sorry shape.

In addition to the financial risk, which the CMAP staff came up with using numbers provided by the Illinois Department of Transportation, the staff analysis says IDOT’s projections about growth, impact on congestion and economic development all are inflated.

If that’s not bad enough, consider the cost of tolls. You would pay about $11 to drive that 47-mile stretch of corn and soybeans. That’s about four times more per mile than you pay on the Illinois Tollway system. Truck drivers would pay even more — perhaps $30 — but why would they when they can use I-80 for free instead?

By the way, Illiana is supposed to be a public-private partnership, but no private companies have expressed interest. The Illinois Tollway Authority wants nothing to do with it.

There are environmental concerns as well. The 19,000-acre Midewin National Tallgrass Prairie, the largest piece of contiguous open space in northeastern Illinois, would be affected. A study by the Federal Highway Administration confirms more than 3,000 acres of family farmland would be destroyed.

SCOTUS: Amtrak Has Legal Authority to Set On-Time Performance Standards

WASHINGTON – The U.S. Supreme Court’s decision today affirming Amtrak’s power to create on-time performance standards could get slumping Midwest arrival times back on track.

“This is a good Supreme Court decision that should help rail passengers across the country,” said Howard Learner, Executive Director of the Environmental Law & Policy Center, which filed an amicus curiae brief in the case. “For every passenger who has been delayed for hours in Northwest Indiana or outside of Cleveland while oil tanker cars slog by, today’s court decision can be an important step forward.”

The Association of American Railroads challenged a federal law that allows Amtrak to help set on-time performance standards for railroads, arguing that Amtrak is a private company rather than a government entity. The Supreme Court, agreeing with the Department of Transportation and ELPC, held that Amtrak is more like a government entity.

The DC Court of Appeals had struck down a provision of the 2008 rail reauthorization bill that instructed the Federal Railroad Administration and Amtrak—consulting with the Surface Transportation Board, freight railroads, states, rail labor, and rail passenger organizations—to develop metrics and minimum standards for measuring Amtrak passenger train performance and service quality.

“Today’s U.S. Supreme Court ruling settles that legal question,” Learner said. “Amtrak is a government entity. Given this ruling, the existing on-time performance standards should be enforced and passenger rail should again be given priority.”

In an amicus curiae brief filed by ELPC, on behalf of itself and the National Association of Railroad Passengers, All Aboard Ohio and Virginians for High Speed Rail, ELPC found that on-time arrival rates had suffered since the appeals court ruling. In 2012, Amtrak achieved a nationwide on-time performance rate of 83 percent. Since the standards were invalidated by the Court of Appeals, on-time performance fell to an abysmal 42 percent.

While this is a major victory for Amtrak passengers across the nation, the Supreme Court’s ruling does raise the possibility of a lengthy court fight should the Association of American Railroads seek to continually litigate other issues around on-time performance.

“The highest court in the land has spoken and we hope is that freight railroads will move forward as a partner to improve passenger rail service across America,” added Learner.

Barney Faletti’s house wouldn’t have to be razed to make way for the Illiana toll road, but that’s little comfort. The proposed highway would cut through his neighbor’s farm field, passing within about 150 feet of Faletti’s Wilmington home. His idyllic riverfront haven would be spoiled. His property value would tank.

For what? A privatized trucking highway that Illinois doesn’t need and can’t afford. Regional planners warn that the Illiana wouldn’t carry enough traffic to pay for itself, leaving taxpayers on the hook for up to $1.1 billion in subsidies.

It’s the sort of wasteful spending we’re counting on Gov. Bruce Rauner to halt or, in this case, prevent. And like the property owners along the 50-mile Illiana corridor, we’ve seen some encouraging signs.

Randy Blankenhorn, Rauner’s pick to lead the Illinois Department of Transportation, is no cheerleader for the Illiana. Blankenhorn’s last job was as executive director of the Chicago Metropolitan Agency for Planning. It was CMAP’s staff that called baloney on the rosy projections used to justify the Illiana.

Today the U.S. House of Representatives passed legislation to authorize $8 billion in Amtrak funding. While the U.S. Senate still needs to consider the matter, this vote is a victory for ELPC and allies, who have been fighting back against anti-Amtrak amendments – including one introduced earlier this week that would have eliminated all funding for Amtrak, effectively ending all long-distance and state Amtrak train service.

Almost 700 ELPC followers and thousands of others throughout the country wrote to their Members of Congress with a clear message: Americans want a strong national train network and elected officials who support. This grassroots support played a huge role in securing today’s bipartisan vote.

Ask Chicago environmentalists who’s the Windy City’s best lawyer, and they’re likely to name Howard Learner.

Learner has built his Environmental Law and Policy Center into a Midwest powerhouse over the last 20 years on transportation and clean energy issues, scoring victories in courtrooms and state legislatures along the way.

His shop eschews the national spotlight for a hyper-regional focus that he says is part of the group’s DNA.

“First of all, we are Midwesterners,” he said. “The Midwest is probably the most important region in the most important country in the world.”

ELPC is among a few regional environmental law centers that operate in the gap between national Goliaths like the Natural Resources Defense Council and small grass-roots organizations. The center takes on major litigation — fighting lawsuits brought by former Chesapeake Energy Corp. CEO Aubrey McClendon, arguing for solar and wind energy in state Supreme Courts, and battling Great Lakes pollution. Moreover, it has developed a lobbying operation that pressures government officials — from U.S. senators to mayors — to support environmentally progressive policies.

Learner prides himself on leading a “grass-tops” organization, meaning it seeks to unite leaders from often-opposing camps — such as unions and local chambers of commerce — to push for common goals.

Sometimes that works, and sometimes it doesn’t, but ELPC is now thriving, thanks largely to Learner’s grasp of regional politics.

“He has steered clear of the weird political fights,” said J. Paul Forrester, an energy and agricultural specialist at Mayer Brown in Chicago. “He has a lot of political acumen. I give him a lot of credit for that. That’s helped him avoid ugly confrontation.”

Howard Learner launched the Environmental Law and Policy Center 20 years ago.

Learner, 59, lives a mile-and-a-half from where he was born in Chicago. The son of a University of Wisconsin football player, he’s well over 6 feet tall and bearded. He cuts an imposing presence that he establishes right away with a firm handshake.

Growing up as an outdoorsman, Learner biked across Wisconsin several times and always had a backpack ready for weekend trips. He attended the University of Michigan and remains a devoted fan of the Wolverine football team, then headed to Harvard Law School.

He returned to Chicago with his law degree and worked for a public interest law firm that specialized in housing cases. Learner launched the group’s environmental practice and specialized in pro bono work.

In 1991, seven major foundations pooled funds and asked several local lawyers for proposals for a regional-based legal center to address environmental programs in the Midwest. Such a group didn’t exist, and, as Learner recalled, there were ample reasons the region needed one.

The Great Lakes contain nearly a fifth of the world’s freshwater supply and provide drinking water to more than 40 million people. At the time, electricity utilities were becoming more regionally focused, building power lines across state borders. The Midwest was also home to some of the dirtiest coal-fired power plants. Three-quarters of the pollution in the Great Lakes was coming from the energy and transportation sectors.

The region also served as the nexus of multiple types of transportation; interstate highways crisscross the area, as do major railways. And Chicago’s O’Hare International Airport serves as a hub of air travel in the region.

“If you are serious about solving our climate change problems, and you’re serious about keeping the Great Lakes clean,” Learner said, “you need to deal with the energy and transportation sectors on a regional basis.”

Learner applied for the funding, basing his proposal in part on other regional outfits like the Conservation Law Foundation in New England, the Southern Environmental Law Center and the Sierra Club Legal Defense Fund on the West Coast, which has since become Earthjustice.

The foundations backed Learner, guaranteeing $850,000 per year for three years. He left his practice, rented a storefront and started assembling furniture.

At the core of the group’s philosophy from the start, Learner said, was devising “pragmatic solutions” that paired environmental benefits with economic growth and job creation. Now such proposals are increasingly common among environmental groups, but at the time they weren’t.

Learner pledged that whenever his group came out against a project or proposal, it would say yes to a less harmful alternative.

“We said from the beginning we weren’t going to get boxed in as naysayers,” he said.

ELPC now has an annual budget of more than $6.5 million and about 50 employees in eight offices throughout the Midwest. It divides its efforts into two groups. Its strategic advocacy arm lobbies and files lawsuits to fight what it views as environmentally harmful policies. And second, it brings parties together to come up with “eco-business” deals and proposals, such as working with labor unions, local chambers of commerce and officials to facilitate solar and wind energy development in the Midwest, or a regional high-speed rail network.

Those efforts have yielded results. Iowa is the second-largest wind energy producer in the country, and Illinois, Minnesota and Kansas all rank within the top 10. And plans for a regional high-speed rail proposal to serve 60 million people in eight states are starting to jell. The St. Louis-to-Chicago-to-Detroit line is being built, and sections already run at 110 mph. The effort has garnered the support of the Obama administration, which committed $13 billion in the 2009 stimulus package.

Looking for opportunity

ELPC’s success is due in large part to Learner’s relentlessness.

Jerry Adelmann, president of the Chicago-based Openlands conservation group, said it typically takes Learner “two seconds” to respond to an email.

“He lives and breathes this stuff,” Adelmann said. “It’s part of his very being.”

To his foes — which are typically entrenched energy utilities — Learner can come off as a zealot. But he has overcome such criticism through political adeptness, which is unusual for someone who wears his Democratic-leaning politics on his sleeve.

Learner was Illinois delegate at the 2004 Democratic National Convention, and has served on political committees that others in the nongovernmental organization community would likely shy away from out of fear of reprisals from the other side.

“Howard is out front in terms of his politics,” Adelmann said.

Learner seems to dodge most blowback, though, largely because of his instincts.

“I think Howard is one of those visionary leaders,” said Josh Mandelbaum, an attorney in ELPC’s Des Moines, Iowa, office. “His mind is always spinning, and he sort of sees the direction that things are moving. He is constantly trying to anticipate what opportunities will present themselves and constantly trying to take advantage of them in a strategic way.”

That doesn’t mean ELPC doesn’t have critics.

Todd Maisch, president of the Illinois Chamber of Commerce, said it’s possible to have a “reasonable conversation” with ELPC. But he stressed that the group often presses for more stringent environmental controls than his members can support.

“Bottom line is, we think a big part of their agenda results in very little environmental improvement but huge costs,” Maisch said.

He added that ELPC’s coalition building is often less successful than the group says.

“Their attempts,” he said, “to bring people together to build a consensus — a lot more of those fail than succeed.”

Battling energy tycoon

Learner and ELPC can nevertheless point to significant achievements, both on the large and small scale.

ELPC was part of a coalition that pushed for the closure of two old power plants in 2012 on Chicago’s South Side, the city’s last two coal-fired facilities. Before that, it fought to ensure that wastewater was treated before utilities discharged it into the Chicago River.

And last summer, ELPC lawyers secured an Iowa Supreme Court victory in challenging an Iowa Utilities Board decision that created an unfavorable and expensive environment for solar energy development in the state.

There is also a strong “defender of the little guy” thread to their work. Perhaps no case illustrates that better than ELPC’s work for a small community in Saugatuck, Mich., against former Chesapeake CEO McClendon.

ELPC’s victories include protecting regional waterways like the Chicago River from contaminated discharges.

An artsy Lake Michigan resort town with fewer than 1,000 year-round residents, Saugatuck is a 2½-hour drive from Chicago. In summer, tourists visit the town’s art galleries, shops and renowned beach dunes. The community has sought to protect those attractions from development by passing strict zoning laws.

Those efforts were threatened, however, in 2007, when McClendon bought 412 acres at the mouth of the Kalamazoo River that the town had been trying to make part of the public domain and conserve for 50 years.

McClendon wanted to build a gated community and resort on the land, with a nine-hole golf course, hotel, mansions and condos. Within 30 days of purchasing the property, he filed a series of lawsuits challenging Saugatuck’s zoning laws.

Overwhelmed, David Swan and the Saugatuck Dunes Coastal Alliance turned to Learner for help.

ELPC took the cases, and Swan said the group’s attorneys became part of the community. They also provided communications and marketing support to Swan and his allies.

They were able to halt McClendon’s development. In November 2011, a federal district court judge threw out a settlement between McClendon and the Saugatuck Township Board that would have essentially removed zoning provisions from the property. The judge ruled that the settlement would have illegally prevented the board from ever updating its zoning laws for the property.

Further, the court held that any future such settlement would require a hearing to ensure it benefits the “public good.”

There remains some ongoing litigation, but the community has since bought back half the land McClendon purchased. And, Swan said, nothing has been built on McClendon’s land.

Swan credits ELPC with saving the dunes — and his community.

“It just kind of amazed me,” Swan said. “Here was a really brilliant attorney, who is really busy with huge projects, and he doesn’t let small projects like trying to save 400 acres of pristine duneland fall by the wayside.”